Fletcher v. Fitchburg R. Co.

Decision Date09 May 1889
Citation149 Mass. 127,21 N.E. 302
PartiesFLETCHER v. FITCHBURG R. CO.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court
COUNSEL

F.S. Hesseltine and T. Curley, for plaintiff.

Geo. A Torrey, for defendant.

OPINION

KNOWLTON J.

The only important question in this case is whether there was any evidence that the plaintiff, at the time of the accident, was in the exercise of ordinary care. Certain facts are undisputed. The plaintiff was on the south side of the railroad, driving a four-horse team northward, going for a load of sand. There were on the railroad at the crossing of the highway two main tracks and two side tracks, one north and the other south of the main tracks. The distance between adjacent tracks was about 61/2 or 7 feet. On the south side of the railroad and on the east side of the highway was a barn 30 feet distant from the nearest side track. A person driving northward on the highway, as soon as he had passed the barn, would have an unobstructed view along the defendant's track towards the east, for a distance of over 2,300 feet. The plaintiff was struck by the engine of a regular passenger train, coming from the east on the north main track. The accident happened at about 9 o'clock in the forenoon, and the plaintiff had known for some years that a passenger train from the east arrived there daily at about that time. He was also familiar with the crossing, and knew that no gate nor flagman was maintained there. There is some conflict of evidence as to the other facts, but according to the plaintiff's account, upon which alone he relies, a freight train had backed up over the crossing to get some cars, which were standing on the southerly side track, and the plaintiff, as he was approaching the track, held his horses back a little and just came to a stop as the train was passing over the crossing. When the cars got by the crossing he started to cross, and as soon as he got across far enough to enable him to look past the freight train he saw the engine of the passenger train right upon him. He testified that, when he stopped his team for the freight train to pass, he was right opposite the barn; that when he started his team the freight train "was going over, and got over the crossing;" that he could not say whether the rear car had got over "more than a car's-length or two car's-length;" and that the freight train was in such a position that he could not see the northerly main track.

As a general rule, a person is not in the exercise of due care who attempts to cross a railroad track without taking reasonable precaution to assure himself, by actual observance, that there is no danger from approaching trains. It has been held in many cases that he cannot properly trust his sense of hearing alone, but must use his sight as well, if it is reasonably practicable so to do. Butterfield v. Railroad Corp., 10 Allen, 532; Allyn v. Railroad Co., 105 Mass. 77; Wright v. Railroad, 129 Mass. 440; Tully v. Railroad Co., 134 Mass. 499; Wheelwright v. Railroad Co., 135 Mass. 225. This rule has been held applicable where a plaintiff's attention has been diverted, or his view of a coming train has been obstructed, by another train which has just passed. Bancroft v. Railroad Corporation, 97 Mass. 275; Mayo v. Railroad, 104 Mass. 137-141; Allerton v. Railroad Co., 146 Mass. 241, 15 N.E. 621; Granger v. Railroad Co., 146 Mass. 276, 15 N.E. 619.

In the case at bar the plaintiff was driving a heavy team. His horses, as he testified, were not frightened at the cars. There was no apparent excuse for haste. He stopped opposite the barn, where it was impossible to determine whether a train was coming from the east, and a delay of one or two minutes after the freight train had gone would have made the tracks visible by the corner of the barn towards the east for a long distance; but without any reason for so doing that can be discovered in the facts, or that he could give in his testimony, he drove upon the track, when it was impossible to use his sight for his protection, and when it was probably impossible to distinguish the sound of the coming passenger train from the noise of the intervening freight-cars. This was an act which the general knowledge and experience of men at once condemn as careless. We are of opinion that there was no evidence that he was in the exercise of due care. The case is very different from French v. Railroad, 116 Mass. 537, in which it appeared that the plaintiff was crossing a single track railroad, and, seeing that a freight train had just passed, did not look to see if another train was closely following it, and was struck by a car which had been detached to make a flying switch. So, too, in Griffin v. Railroad Co., 147 Mass.--,19 N.E....

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  • Fletcher v. Fitchburg R. Co.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 9, 1889
    ...149 Mass. 12721 N.E. 302FLETCHERv.FITCHBURG R. CO.Supreme Judicial Court of Massachusetts, Suffolk.May 9, Exceptions from superior court, Suffolk county; CHARLES P. THOMPSON, Judge. Action by Peletiah Fletcher against the Fitchburg Railroad Company for injuries sustained by being struck by ......

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